Safe Harbour Provisions Expanded Under New Commonwealth Act

Thursday 5 July 2018 @ 11.48 a.m. | IP & Media | Legal Research

The Copyright Amendment (Service Providers) Act 2018 (Cth) (‘the Act’) was assented to on 29 June 2018. This Act is for the purpose of extending the operation of the safe harbour scheme related to copyright. The Act is due to commence on 29 Dec 2018.


This Act amends the Copyright Act 1968 (Cth) to insert provisions which are for the purpose of broadening the definition of service providers. The specific changes are:

  • The insertion of provisions stating that references to ‘carriage’ be omitted for the goal of implementing measures against a broader range of service providers;
  • The insertion of a new definition of ‘service provider’ which includes carriage service providers, services providers for disability resources, parliamentary and other research services, educational institutions, cultural institutions and other research services.


As stated in the Act’s associated second reading speech, this Act builds on the amendments made by the Copyright Amendment (Disability Access and other Measures) Act 2017 (Cth) ('Disability Access Act'). The Disability Access Act was introduced for the purpose of modernising the operation of the Copyright Act 1968 (Cth) and improve the relationship between education and cultural service providers and rights holders. For more information on the Disability Access Act, please read TimeBase’s earlier article.

The Act also builds on findings from extensive consultation with stakeholders into the extension of the safe harbour provisions, as noted in a 2017 media release issued by the Minister for Communications and Minister for the Arts. The media release has stated that the Government’s intention and goal is to develop safe harbour provisions that strikes  a balance between the interests of copyright holders and the creative sector and digital economy.

In his second reading speech in the Senate, Senator James McGrath, Assistant Minister to the Prime Minister stated that the aim of extending the safe harbour scheme to service providers is to provide greater certainty to these providers and more information about their responsibilities when interacting with material in the online realm.

He provided an overview of the safe harbour scheme, noting that initially a cautious approach was taken because the Internet was still a new development at the time:

‘The current safe harbour scheme in the Copyright Act 1968 was introduced following the commencement of the Australia-United States Free Trade Agreement in 2005. The scheme in the Australia-United States Free Trade Agreement was intended to provide an alternative to court proceedings for copyright owners where their infringing material is hosted, cached or linked to by a service provider or where a provider's network services are used to infringe copyright. It sets out conditions that a service provider must comply with, including in some situations, taking down infringing material or removing links to infringing material when they have been notified of a suspected infringement by a copyright owner. When the scheme was originally implemented in Australia, it was restricted only to carriage service providers - or providers of telecommunications services (such as Internet Service Providers) as they are more commonly known. This cautious approach was taken because the Internet was still in its infancy.’

Media Response

Under the new laws, service providers such as universities, educational institutions, and cultural institutions will have protection previously only given to internet service providers. Universities Australia chief executive, Catriona Jackson, was reported in The Australian as stating:

‘Universities were at risk of being sued for damages if a staff member or student infringed copyright using the university’s online platforms even if they removed infringing material. Now, like commercial internet service providers, if universities have prevention measures in place and respond quickly to take infringing materials down, that risk is significantly reduced.’

As reported in Computerworld, Australian Digital Alliance executive officer Jessica Coates welcomed the changes, stating:

‘Extending the scheme means these organisations now have the same legal protection as commercial ISPs, providing them with a more certain and supportive legal environment and allowing them to confidently provide more innovative services.’

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.


Copyright Amendment (Service Providers) Act 2018 (CTH), and associated Bill and second reading speeches, as published on TimeBase LawOne.

Sian Powell, ‘New Laws Give Unis Legal Shield,’ The Australian, 4 July 2018.

Rohan Pearce, ‘Australia’s safe harbour regime expands,’ Computerworld, 27 June 2018.

[media release] Minister for Communications, Minister for Arts, Manager of Government Business in the Senate, 'Further consultation on copyright safe harbour legislation', 21 April 2017.

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